The Invisible Woman and Indecent Exposure

In the issue, Spider-Man reminisces with Mr. Fantastic, the Invisible Woman, and the Thing about the recently deceased Human Torch, each one telling a story about him. The Invisible Woman’s story involves a fight with members of the Fearsome Four. While searching for the Four, Spider-Man and the Invisible Woman find the Human Torch signing autographs. Seeing an opportunity to bring him down a peg, Spider-Man sneaks up and pantses the Human Torch. Sure enough, the Fearsome Four choose that moment to show up. With the Torch too embarrassed to fight pants-less, the situation looks grim until the Invisible Woman realizes how she can turn the tables. Using her power to make things invisible, she effectively removes the pants of the three Fearsome Four members, who are then easily rounded up by Spidey and the Torch.

As the police take the villains away everything looks like it will turn out okay until the Invisible Woman (aka Sue Storm) explains her trick. The officer taking her statement says “Ms. Storm, I’m sorry, but if what you say is true, I’m afraid I’ll have to bring you in as well.” Asked what she’s being charged with he replies: “Indecent exposure. She pantsed three men in public. That’s a serious offense.” And sure enough she gets arrested and booked, though apparently she avoids conviction.

So, is rendering someone’s pants invisible indecent exposure? Or if it isn’t, is at least some other kind of crime? Luckily we know the story took place in New York, so we can refer to the law there.

I. Indecent Exposure

In New York the crime commonly called indecent exposure is called “exposure of a person.” Exposure of a person is a violation, less serious than even a misdemeanor, and is (basically) defined thus:

A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed.

N.Y. Penal Law § 245.01.

As you can see, exposure is defined in terms of the exposed person being responsible for the exposure, rather than being exposed by another person. So could Sue Storm be guilty of exposure of a person?

Probably not. As mentioned, the statute is worded in terms of the nude person exposing themselves, not being exposed by another. The best theory we can come up with is that, if the villains could claim a defense of duress (i.e. that they did not intend to expose themselves but rather were compelled to do so), then perhaps Sue could be liable under the theory that someone who compels another to commit a crime is liable for that crime. But this is a weak argument because the villains didn’t remove their pants under Sue’s compulsion; rather, she rendered them invisible all on her own.

So if she can’t be brought up on charges of indecent exposure, are there any other options?

II. Assault, Invasion of Privacy, and Emotional Distress

Ordinarily a person who exposes another would be guilty of assault, since normally the only way to do so is to forcibly remove their clothing. Even someone with the power of telekinesis could still be charged with assault, since even an intangible force can be enough to constitute assault. See, e.g., Adams v. Com., 534 S.E.2d 347 (Ct. App. Va. 2000) (holding that shining a laser pointer at a police officer constituted assault). But the Invisible Woman’s power doesn’t seem to touch an object at all but rather to warp light around it. So she might not be guilty of assault, either.

Scraping the bottom of the barrel we have the torts of invasion of privacy and intentional infliction of emotional distress. The villains could theoretically try to sue Sue (heh) in civil court, but it would be a hard sell.

III. Defenses

Even if a prosecutor could bring an exposure or assault charge under some theory (or if the villains sued in tort), Sue would have an excellent claim to self-defense and defense of others. The villains attacked without provocation and clearly intended to kill the Invisible Woman, the Human Torch, and Spider-Man. Since the heroes would have been justified in killing the villains, something as mild as a minor public humiliation would certainly be a reasonable force.

IV. Conclusion

On the whole this is a pretty good issue (for those interested, it’s collected in Spider-Man: Matters of Life and Death), but we aren’t surprised that Sue apparently managed to beat the rap.

11 responses to “The Invisible Woman and Indecent Exposure”

Excellent analysis. That was pretty much my conclusion when I read this story as well. I’m just mad at the writers they bothered to portray Sue getting arrested for this at all. The writers made it seem like Sue’s “crime” was so much more reprehensible than the villains’ attempted murder.

Would the first amendment also help Sue? I mean, I know she doesn’t need it but it seems to me that the villains could claim that Sue humiliated them but Sue could argue that they don’t have a case because nothing that she showed the general public wasn’t… true.

It’s true that truth is a defense against defamation (at least in the U.S.), but there are privacy torts for which truth is not a defense. Disclosure, for example:

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.”

This is sometimes called “disclosure of private facts,” and as that name suggests, it applies to the disclosure of truthful but private information.

In your hypothetical example, I don’t think Doom would have a claim for disclosure (it’s not really highly offensive, and arguably the public has a legitimate concern as to whether a political figure—even a foreign one—is telling the truth about themselves).

With regard to the comic: I don’t think revealing the kind of underwear someone wears is highly offensive, though it isn’t of legitimate concern to the public. Perhaps a jury would disagree with me. But when it is revealed that the Wizard wears “Kraven panties,” Spider-Man suggests that the Wizard and Kraven are in a homosexual relationship. If that amounted to involuntarily outing the Wizard, then that gets a lot closer to disclosure.

Technically we only covered the Invisible Woman virtually de-pantsing members of the Fearsome Four using the power to bend light around objects to make them invisible, as depicted in Amazing Spider-Man #657. To quote our disclaimer: “On this blog we discuss fictional scenarios; nothing on this blog is legal advice. No attorney-client relationship is created by reading the blog or writing comments, even if the authors write back.” We’re only discussing the superheroes and villains here, not real people or real-life situations.

When he flames-on, how can anyone tell? In fact, wouldn’t using his flames be an effective way to cover himself? (he can make/wear a fire-speedo)

Also, isn’t Spider-Man the one who is guilty of several misdemeanors on the Torch? Assault, Battery, maybe intentional infliction of emotional distress? Could one make a case for reckless endangerment, since he interfered with the Torch’s ability to protect himself, and this might be reasonably foreseeable?

Why doesn’t Sue pull this trick on Doctor Doom’s mask? Would he have a some sort of case of privacy tort if she did?

It’s not entirely clear why the Torch is so embarrassed, since he promptly creates a set of fire-pants. Spider-Man may be civilly and criminally liable for various things, although given Spider-Man and the Torch’s long-standing history of practical jokes (and the lack of any real harm), it’s unlikely that the Torch would sue or that a prosecutor would file charges.

If Sue tried this on Doom, I suspect we’d find out that Doom’s mask is made of some magic material that resists her invisibility power. And yeah, revealing someone’s disfigurement, which they are obviously very keen on hiding, might qualify as disclosure or even intentional infliction of emotional distress. But it would depend on the circumstances. If it occurred during a fight with Doom, then the same self-defense argument might come into play.

Consent is a defense to battery, meaning that it is up to the Torch to decide whether or not Spidey gets charged. Apparently, Johnny was feeling magnanimous. Besides, Ben Grimm did stuff that was WAY worse.

When I saw the title of this article I thought of the movie, when she was in “civilian” clothes and had to strip in order to become invisible. In such a case, would she be guilty of exposure? Even if her body were invisible, the law quoted above just says that the intimate parts need to be unclothed. Also, if being invisible were a defense (maybe she could claim she was not actually “appearing” in a public place), would she be liable when her power fails? “I didn’t think anyone would see me” doesn’t seem like much of a defense in general, since that could apply to an awful lot of crimes…

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On this blog we discuss fictional scenarios; nothing on this blog is legal advice. No attorney-client relationship is created by reading the blog or writing comments, even if the authors write back. The authors speak only for themselves, and nothing on this blog is to be considered the opinions or views of the authors’ employers.